BANK OF MAHARASHTRA vs CHANDRAKANT PRABHAKAR on 18 June 2019

1. (a) As per OA, on the req t 1, Applicant provided Rupee Term Loan of Rs. capital in the form of Cash Credit Facility of Rs. 15 )(collectively called "Credit Facilities") to Defendant N documentation and security creation by him and the tee from Defendant No. 2 and 3.

(b) ' 4 also provided mortgage security for the Credit Facilities of Simple Mortgage in respect of their immoveable property No. 1/3 in Village Khardi Koshimbe in Taluk Vasai in the Dis and got the same registered with SRO Vasai - II

(b) As per OA, the Defendant No. 1 committed various defaults in complying with the terms and conditions of the Credit Facitities and, in spite of several reminders, the said Defendant failed to honour the obligation to repay the amount due under the CCC and also failed to repay the instalments due under RTL. Consequently, the Applicant issued Recall Notice to all the Defendants I J Order TOA 5l I of 2018 (Ex-parte)(Final) calling upon them to repay the entire outstanding amount of the Credit Facilities and, on their failure to repay, the oA has been filed.

2. (a)Tribunal, after satisfying itself of the OA being within limitation and falling within its territorial jurisdiction as per RDDB Act, ordered issue of Summons to the Defendants.

(b) Summons to the Defendants were sent by Post with Acknowledgement Due. While postal covers addressed to

o. 1 and 3 got served and Acknowledgement Due Card received addressed to Defendant No. 2 and 4 returned undelivered postal endorsement "unclaimed". Applicant filed Affidavit. As per Regulation 19 of The Regulations of practice 2010 d to power conferred under sub-Section(1) of Section 22 of the is deemed to have been made on Defendant No. 2

(c) As Defendants did not appear ei advocate and did not file Written Statements, the ex-parte on 14/71/ 2018 by an Order of the Tribunal. Proceedings :

3. As directed filed, through Mr. Amit Babu Dhandore, Branch enclosing various Documents as Annexures on record by the Tribunal and marked as ,,Exhibits,,) Statement of Account together with the Certificates Books of Evidence Acf 1891,, as Annexures (which are marked AS "25", "26" &. '27"). Of the Documents filed as Exhibits and gone through by the Tribunal, the following are found relevant for the Tribunal to consider and dispose of the OA on merit ( tn r;:r;&i1

Order TOA 511 of 2018 (Ex-parte)(Final) Observation on Evidences

4. The Statement of certified as per Bankers Books of Evidence Ac! claim in OA. Further, the case of the Applicant is Documents (including the above referred Exhibits) Affidavit, which is a sworn Statemen! which as Defendants remained ex-parte. In my view, there is believing the Exhibits and Claim Affidavit and other by the Applicant and the Applicant has proved its case beyond doubt to the extent of sanctioning the Credit Facilities, completing Documentation and disbursement of the Credit Facilities. The Applicant has claimed interest at the rate of 12,40% p.a. with quarterly rests in respect of both RTL and CCF from the date of filing of the OA till their realisation. Having regards to Sec. 19(20) of the RDDB Act (which is analogous to Sec. 34 of Civil Procedure Code, 1908) the contract between the Applicant

5. S. No. Facility Document Exhibit Request Letter of Defs (Original) ,r13r, Demand Promissory Note (Original) ,r14r, Receipts by Def 1 (2 Nos.)(Original) ,r15r,

Rupee Term Loan (Rs. 10,00,000/-) Comp. Deed of Hypothecation (Orl) ,r16r, Request Letter of Defs (Original) ,r17r, Demand Promissory Note (Original),,,. ,r1gr,

2. Cash Credit Facility (Rs. 15,00,000/-) Comp. Deed of Hypothecation (Oil),,. n*#0" Personal Guarantee of Def 2 CEJ"&. ?, (Original) -- t')n,' byDefl& properties Deed of 4 i/r II) (Original) ,r21r, aJ. Common for all Credit Facilities Recall Notice (Office Copy) ,r24r,

Order TOA 51 1 of 2018 (Ex-parte)(Final) and Defendants comes to an end on the filing of the OA. Thus the Tfibunal has discretion in awarding pendente lite and future interest. Considering ttre rate of interest charged by banks for similar facilities, I am of the opinion that interest of justice will be served if the rate interest is awarded at the rate of 11,.00% p.a. on simple interest basis for both RTL and CCF.

6. In the light of above discussions, the Original Application is and Order passed on the following terms.

ORDER

(i) This Original Application is allowed terms set out below; to be issued on the

(ii) There shall be a Decree in as under -

(r) For Rs. 8,26,911/93 Six thousand Nine hundred and Eleven only) alongwith future interest at the rate of 11,.00% simple interest basis) from the date of filing till the date of realisation in respect of Rupee Amount for RTL"); 75/22 (Rupees Eighteen lacs Fifteen thousand Six hundred ty Five and paise Twenty Two only) alongwith future interest at rate of 1],l0% per annum (on simple interest basis) from the date of filing of the Original Application till the date of realisation in respect of Cash Credit Facility ("Decreed Amount for CCF,,); (iiO Defendant No. 1, the Borrower, Defendant No. 2 and 3, the Guarantors, and Defendant No. 4, the Mortgagor, are ordered to pay, jointly and severally, to the Applican! within a period of 30 days, the Decreed Amount for RTL and, in of the

Order TOA 511 of 2018 (Ex-parte)(Final) the event of the said Defendants failing to pay and discharge the dues as directed or in the event of shortfall, the assets forming security for the Rupee Term Loan (covered by Exh"'l.6" being the moveable assets charged &Exh"21" being the immoveable properties mortgaged) be attached / taken possession of and be sold to the extent of realising the dues f shortfall, as the case may be, and in the event of further shortfall, the said Defendants be proceeded against personally by way of personal decree and business assets / assets / estates of Defendant No. 1 and personal assets / estates of o.2to4 be attached and sold for realising the dues / shortfall, as the (i") Defendant No. 1, the Borrower, Defendant and 3, th'e Guarantors, and Defendant No. 4, the Mortgagot, ate , jointly and severally, to the Applicant, within a period of 30 for CCF and, in the event of the said discharge the dues as directed or in the event of security for the Cash Credit Facility (covered by ,r19il "27" being the possession of case may be, moveable assets charged & Exh mortgaged) be attached / taken of realising the dues / shortfall, as the further shortfall, the said Defendants be proceeded way of personal decree and business assets / personal Defendant No. 1 and personal assets / estates of N be attached and sold for realising the dues / shortfall, as the original Documents placed before this Tribunal, supported by the pleadings, it is Declared that there is a valid., subsisting and enforceable hypothecatton / charge on the moveable assets of the Defendant No. L, the Borrower, as per Exh "L6" and Exh "1g" irt favour of the Applicant validly securing the Rupee Term Loan and Cash Credit Facility; and (") to the

Order TOA 5 I I of 2018 (Ex-parte)(Final)

(vi) Based on the Original Documents placed before this Tribuna1, supported by the pleadings, it is Declared that there is a valid, subsisting and enforceable mortgage over the immoveable properties described in Exh "2L" irr favour of the Applicant validly securing the Rupee Term Loan and Cash Credit Facility;

(vii) Based on the Originat Documents placed before this Tribunal, supported by the pleadings, it is Declared that there is a valid, subsisting and ble joint and several and unconditional and irrevocable Defendant No. 2 and 3 (Bxh,,20,,) validly securing the Rup Cash Credit Facility;

(viii) Defendant No. 1 to 4 are directed to on to the Recovery O{ficer, Debts Recovery Tribunal - III, immoveable assets of theirs as also Defendant No. on oath, both moveable and immoveable assets of the on by him for the purpose of attachment and sale as and / or Clause (iv) above;

(ix) Defendant No. dealing with the assets described in Exh "'1,6" &.'19" also assets declared on oath as per Clause

(viii) above till the complete recovery of Decreed Amounts be issued forthwith as per above decrees and sent to the , Debts Recovery Tribunal - III, Mumbai;

(xi) Parties are directed to appear before the Recovery officer, Debts Recovery Tribunal - III, Mumbai; of and ( I in any

(ii) above;

-t

Order TOA 5 1 1 of 2018 (Ex-parte)(Final)

(xii) Copies of final order be sent to all concerned free of cost and File be consigned to records TS Presiding (Pronounced in open Court) Dated : lgth June 2019 Debts Recovery Tribunal - I[, Mumbai. ,w 1i*